Forget terrorism: Police want your data for the war on drugs

Mandatory data retention was an "urgent priority" after the Paris terror attacks.

Police told us the laws were "vital" for national security.

The former PM said data retention was a "small price to pay" for freedom and to "protect our kids."

But when it comes to telecommunications surveillance in Australia, terrorism, child pornography and cybercrime barely rate a mention. It's all about policing drug crime.

That's according to new research from UNSW Law School visiting fellow Dr. Rob Nicholls, who has tracked police use of surveillance laws in Australia, the UK, US and Canada, and how privacy is played off against politics.

Since the terror attacks on September 11, Nicholls says Australia has seen a raft of surveillance legislation passed under the guise of national security laws. But Australian law enforcement officers are overwhelmingly using warrant powers to police drug crime. And they're doing so at a much higher rate than overseas.

Police power

Police and law enforcement in Australia are authorised for thousands of telecommunications warrants every year, more than the US and UK, and significantly more than Canada.

But Nicholls doesn't lay the blame on frontline officers.

"If you give police a power, they're going to use that power," he told CNET.

Instead, Nicholls points to a political system that has continually expanded police powers, and government ministers, "in particular the Attorney-General," that have sold these surveillance laws to the public using "highly selective claims."

"[Politicians refer to] the threat of terrorism, or the scourge of child pornography as being the drivers behind change, when in fact when you look at the statistics, it's actually drug crime. Drug crime is what the warrants are primarily used for.

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"If Senator Brandis said, 'We want to increase surveillance powers because we've got a drug problem in this country'...if you get your argument up based on the crimes you're actually investigating, all well and good.

"But if you're choosing crimes that are not actually those that drive interception...then I think there's a problem."

Nicholls' study used publicly available data from government departments overseas and the Attorney-General's Department in Australia.

The AGD breaks down the use of warrants based on particular offences. But when police access metadata without a warrant in Australia, there is no public record of the crimes they are investigating.

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As far as Nicholls is concerned, it is "highly probable" police are using metadata for the same reasons they are getting surveillance warrants.

"I see no reason why it wouldn't be similar," he said. "If it's not, then perhaps the Attorney-General's Department could tell us it's not...If the driver is drug crime, just say so."

The Attorney-General's Department did not respond to our questions about the breakdown of offences.

CNET understands the Department's next report on the Telecommunications Interception and Access (TIA) Act will include statistics about the types of offences for which metadata has been accessed.

But until then, the fact remains -- without publicly-available figures, we don't know what police use metadata for.

The creeping surveillance agenda

Would data retention laws have passed if the government had focused on drug crime? Was the threat of terrorism political misdirection?

"In part it's a national security issue. But the focus on national security was probably aimed at getting to a bipartisan agreement, rather than making sure there was a robust debate about the balance between privacy and the need for intelligence by law enforcement agencies," Nicholls says.

"Who can be against national security?"

The weight of surveillance legislation, passed in the interests of security, is only increasing in Australia.

Last year, the head of Australia's peak telco body, Communications Alliance CEO John Stanton, said the industry was "punch drunk" with the weight of regulation, being pushed through for "security" reasons.

"If you put the 'national security' tag on something it tends to whizz its way through Parliament," Stanton told CNET.

According to Nicholls, there's a change that has been creeping into Australia's legislative agenda since September 11.

"Over the last 15 years, almost every year, there is an amendment to the TIA Act," he said. "Every single amendment increases the powers and capabilities of law enforcement.

"Every year we've seen new things: the introduction of stored communications warrants, access to prospective, real-time, metadata...Essentially, retaining metadata on everybody for two years was just another change.

"The concern is, because the changes are relatively small -- even if sometimes controversial, like data retention -- that actually the balance has shifted very significantly over 15 years."

Without a breakdown of the offences driving warrantless metadata access by law enforcement, there's no way of knowing what role national security has played in data collection. And there's no way of knowing whether we were fed a furphy to increase the scope of government surveillance.

But the Attorney-General and his Department could share that information with the public. After all, if the Department has nothing to hide, surely it has nothing to fear.